' MUSHIR ALAM, J.--- Short controversy involved in this appeal. The appellant' through this appeal, has impugned ex parte interim injunction granted by learned Single Judge in Chamber dated 18- 12-1998 on application under Order 39, rules 1 and 2 read with section 151, C.P.C. Filed alongwith the suit for declaration and permanent and mandatory injunction.
2. Brief facts relevant for the purposes of this appeal are that the respondent/plaintiff filed a Suit being No,1581 of 1998 for declaration and permanent injunction, alongwith the suit, the plaintiff also filed an application under Order 39, rules 1 and 2 read with section 151, C.P.C. Praying inter alia.
"It is prayed on behalf of the plaintiffs that this Honourable Court may be pleased to grant ad interim injunction order restraining the defendants, their servants their employees, their contractors from carrying on the work construction on the plot of land bearing No,F-55 of Park Lane Block V, Kehkashan Clifton, Karachi."
3. The learned Single Judge in Chambers on hearing the respondent/plaintiff on urgent motion on said application passed following orders on 18-12-1998:- "Plaintiffs are aggrieved as a result of raising of construction by the defendants on Plot No,F/55 Park Lane Area of Block V, Kehkashan, Clifton, Karachi which as alleged is in violation of the Building - Regulations. These facts have been categorically stated in paras 4 to 7 of the plaint. It is argued by Mr. Zubairi that time and again the plaintiffs have approached K.D.C.A. But they are not taking any action on such violation of the Building Regulations. Issue notice to the defendants for 23-12-1998.
Till then, defendants are required to maintain status quo. Notice to the Chief Controller of Buildings K.B.C.A. For 23-12-1998 who will ensure the maintenance of status quo by the defendants."
4. The appellant appeared after notice and filed counter-affidavit and rejoinder by the respondent was also filed and application is ripe for final hearing.
5. Grievance of the appellant is that the interim orders passed by the learned Single Judge in Chambers without notice to the appellant/ defendant as required under rule 3 of Order 39, C.P.C. Is without jurisdiction and this was his precise submission, according to the learned counsel for the appellants, orders of the learned Single Judge ordering ad interim status quo against the appellant/defendant by-passing the requirement of notice is without jurisdiction, as such, liable to be set aside. In support of his contentions, he relied upon case reported as Ata Muhammad Qureshi v. Settlement Commissioner, Lahore and others PLD 1971 SC 61.
7. Learned counsel appearing for the respondent/plaintiff argued that the orders impugned are legal and with jurisdiction. He submitted that issuance of notice in each and every case is not mandatory and such orders could be passed in view of rule 76 of Sindh Chief Court Rules.
8. In order to appreciate the contentions raised by the learned counsel for the parties it will be advantageous to refer to rule 3 of Order 39, C.P.C. Which runs as under:-- "Before granting injunction Court to direct notice to opposite party. The Court shall in all cases before granting an injunction, direct notice of the application for the same to be given to the opposite ex parte.
' Provided that, except in-the case of sale of goods for default in payment, at the stipulated time, of a debt in respect of which the goods were pledged with any bank, or where the injunction is to be granted against Government or a Government servant as such or any statutory authority, board or corporation set up or established by Government in any case not involving the ejectment of any person from or the demolition of any premises, the Court may, where it appears that the object of granting injunction would be defeated by the delay dispense with such notice: ' Provided further that the period of notice under this rule to Government or a Government servant as such or any statutory authority, board or corporation set up or established by Government shall not be less than two days nor exceed seven days."
9. Now adverting to the facts- as placed on record the learned Single Judge in Chamber passed ad interim orders for maintenance of status quo against the appellant on 18-12-1998 without notice and ordered issuance of notice for 23-12-1998 on which date the appellant/plaintiff appeared and by consent the case was adjourned to 6-1-1999 at 12 O'Clock.Interim orders passed earlier was ordered to be continued till next date of hearing.
10. Again on 6-1-1999 application C.M.A. 10921 of 1998 under Order 39, rules 1 and 2, C.P.C. Was "deferred interim orders passed earlier "was ordered to "continue till the next date of hearing".
'Thereafter the appellant on 9-1-1999 preferred the instant appeal.
11. In the meanwhile, the record of Suit No,1581 of 1998 shows that the appellant/defendant chose to file an application under Order 7, rule 11, C.P.C. On 30-12-1998, to which counter-affidavit was also filed by the respondent/plaintiff the record shows that on 26-2-1999 and 3-3-1999 all the applications listed including applications under Order 39, rule 1 and 2, C.P.C. And under Order 7, rule 11, C.P.C. Were partly heard, on 16-3-1999. Arguments as to application under Order 7, rule 11, C.P.C., were concluded and on 16-3-1999 when the matter was again fixed for hearing of other application same were deferred till the decision of applications under Order 7, rule 11, C.P.C. Orders on which applications were reserved, and later on suit file was called by this Court.
12. On examination of rule 3, Order 39 as a whole, it is plain and simple to observe that' it echos principle of "Audi alteram partem" which principle as per scheme of the provision is not rigid but flexible one as the operative part of rule 3, C.P.C., Order 39, which requires issuance of notice before granting injunction is relaxed in first proviso to the said rule and strict adherence to issuance of prior notice before exercise of authority to issue injunctive order cannot be pressed into service.
13. The case of Ata Muhammad Qureshi PLD 1971 SC 61 relied upon by the appellant is quite distinguishable in the said case. The Honourable Supreme Court was confronted with exercise of jurisdiction by statutory authority of Additional Settlement Commissioner under Displaced Persons (Compensation and Rehabilitation) Act of 1958, whereby the Additional Settlement Commissioner, in purported exercise of, his revisional jurisdiction modified orders without affording opportunity of hearing to the aggrieved party, the Honourable Supreme Court interpreted sub-rule (5) of section 20 of the Act of 1958, which reads as:-- "20 No order under this section shall be passed revising or modifying any order effecting any person without giving such person a reasonable opportunity of being heard."
14. The apex Court, after taking stock the exercise of jurisdiction by a Tribunal of limited authority and statutory origin held that sub-clause (5) of section 20 of the Act is mandatory in character and places a limitation on the jurisdiction of the revising authority not to make any adverse order against a person without giving him opportunity to show cause against it, if such an order is made without fulfillment of this prerequisite it would certainly lack jurisdiction.
15. The above case is quite distinguishable inasmuch as the Supreme Court laid down above principle in relation to statutory Tribunal with limited authority whereas the case in hand relates to exercise of jurisdiction by the High Court which cannot be equated with statutory Tribunal, jurisdiction of High Court cannot be curtailed by placing such a B strict construction as on the plain reading of proviso to rule 3 of Order 39, issuance of prior notice, before issuing injunctive order has been relaxed, where it appears to the Court the object of grant of injunction would be defeated by the delay and while exercising such power Court above is the Arbitrator.
16. In a case reported as Maulvi Abdul Muzaffar and others v. Sasanka Shekhar Gupta and others PLD 1966 Dacca 468 the Division Bench confronted with somewhat similar position, overruling case of Dr. Ahad Ali Khan and others v. Inayatullah Maudal and others PLD 1964 Dacca 624 wherein issuance of notice was considered mandatory, the Division Bench while overruling, such case, held:-- "Therefore, the position in law is that the Court shall not ordinarily grant an injunction without notice to the opposite party. The Court may however, grant injunction without such notice if it is found that delay involved in service of the notice would defeat the very purpose of injunction. Only in the case of a 'sale of goods for default in payment at the stipulated time of debt in respect of which the goods are pledged with the bank" the Court cannot dispense with notice even though it is felt that the delay would defeat the purpose of the injunction. The limitation of the Courts' power does not extend to other eases."
17. The jurisdiction of High Court cannot be abridged unless expressly barred ousted, while exercising jurisdiction vested in High Courts, it may be observed that in addition to provision of Code of Civil Procedure, 1908, the High Court of Sindh in exercise of its original civil jurisdiction is also guided by rules contained in Sindh Chief Court Rules (O.S.) and such Rules having overriding effect and force of law by virtue of sections 129 and 131, C.P.C., Rule 76 of the Sindh Chief Court rules provides:-- "Notwithstanding anything contained in rule 123, the plaintiff may move the Court ex parte for interim relief on the ground of urgency and the. Court on such application may, if it shall think fit, grant interim relief on such term as shall seem just"
18. As such, from the bare reading of above quoted rule and first proviso to rule 3 of Order 39, it is clear that High Court in exercise of its original jurisdiction may pass ex parte injunction order without notice to the other party provided the case falls out of the clutches of exception contained in first proviso to the rule 3 of Order XXXIX.
19. The first two rules of Order XXXIX of the Code of Civil Procedure confer powers on Court to grant temporary injunction and rule 3 regulates the manner in which Courts have to exercise their discretion in granting such injunction and rule 4 empowers the Court to discharge, vary or set aside such injunction, as such it can be said that Order XXXIX is a complete Code in itself. It cannot be said better than what has been in a case reported as Sindh Madrasatul Islam Board Society v.
Shamim 1982 CLC 2242:-- "It is not an incident that this rule (4) follows rule 3. In my humble opinion the intention of the Legislature in prescribing this rule is very clear. It has been enacted to give relief against ex parte orders passed under rule 3 or when it is necessary, on account of subsequent change of circumstances to vary or modify or set aside on interim order which had become final."
20. In instant case, it can be seen that the appellant/defendant on all 19 dates since his appearance on 23-12-1998, before the learned Single Judge, has either consented or requested for an adjournment and in fact lastly on 1-4-1999 requested the learned Single Judge seized of the matter to decide his application under Order 7, rule 11, C.P.C. First and to defer other applications including application under Order XXXIX, rules 1 and 2, C.P.C., and having failed to avail remedy provided for in rule .4 of Order XXXIX, C.P.C. he cannot be allowed to resurrect rule 3 only on the premise that Court had no jurisdiction to grant ad interim injunction without notice. Fact remains that order impugned is an interim order which is being continued by consent, and still has not been made absolute, as application is still pending and where a Court is seized of a E matter within its jurisdiction Appellate Court will not intervene at such stage merely on the ground that some rules of procedure were not followed. In the result this appeal having no merits is dismissed with no orders as to costs.
21. Under facts and circumstances of case it is expected that the learned Single Judge seized of the original proceedings to decide, all the pending applications as expeditiously as possible. Suit file may be sent back immediately to the learned Single Judge from whom it was called for.